373 F.

3d 530

EASTERN ASSOCIATED COAL CORPORATION, PlaintiffAppellee,

v.
Gary D. MASSEY, Defendant-Appellant.
United Mine Workers of America, Amicus Curiae supporting
Appellant.
Eastern Associated Coal Corporation, Plaintiff-Appellant,
v.
Gary D. Massey, Defendant-Appellee.
United Mine Workers of America, Amicus Curiae supporting
Appellee.
No. 03-1991.
No. 03-2012.

United States Court of Appeals, Fourth Circuit.

Argued: May 7, 2004.
Decided: July 2, 2004.

Roger Daniel Forman, Forman & Huber, L.C., Charleston, West Virginia,
for Appellant/Cross-appellee Gary D. Massey.
Charles David Morrison, Steptoe & Johnson, Clarksburg, West Virginia,
for Appellee/Cross-appellant Eastern Associated Coal Corporation.
Rodney L. Bean, Jill O. Florio, Steptoe & Johnson, Clarksburg, West
Virginia, for Appellee/Cross-appellant Eastern Associated Coal
Corporation.
Bradley J. Pyles, Crandall, Pyles, Haviland & Turner, Logan, West
Virginia, for Amicus Curiae United Mine Workers of America.
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opinion.
Judge WILKINSON wrote the opinion, in which Judge LUTTIG and

Judge SHEDD joined.

OPINION
WILKINSON, Circuit Judge.

Appellant Gary D. Massey filed a complaint in West Virginia state court

against his employer, appellee Eastern Associated Coal Corporation, after
Eastern terminated him in April 2001. Massey alleged workers' compensation
discrimination in violation of the West Virginia Workers' Compensation Act,
see W. Va.Code 23-5A-1 and 23-4-9 (2002), and disability discrimination in
violation of the West Virginia Human Rights Act, see id. 5-11-9(1)
("WVHRA"). Eastern in turn brought suit in federal court, arguing that the
collective bargaining agreement ("CBA") that governed Massey's employment
the National Bituminous Coal Wage Agreement (the "Wage Agreement")
required him to arbitrate both state law claims. The district court ruled that the
Wage Agreement compelled Massey to arbitrate his workers' compensation
discrimination claims, but that it did not waive his right to sue Eastern for
violating the WVHRA. Because we find no clear and unmistakable waiver in
the Wage Agreement of Massey's right to bring either statutory claim against
Eastern in a judicial forum, we affirm in part and reverse in part. See Wright v.
Universal Maritime Serv. Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d
361 (1998).

I.
2

Massey worked as an electrician in a coal mine operated by Eastern in Boone

County, West Virginia. In January 2000, Massey was injured while on the job,
and he subsequently applied for and received workers' compensation benefits,
including vocational rehabilitation benefits. On April 18, 2001, however,
Eastern discharged Massey on the ground that his physical condition prevented
him from working his job at the mine.

Massey filed suit against Eastern in the Circuit Court of Boone County, West
Virginia in January 2003. He claimed that he was discharged on account of his
receipt of workers' compensation benefits, including rehabilitation benefits,
constituting workers' compensation discrimination and related violations under
the West Virginia Workers' Compensation Act. See W. Va.Code 23-5A-1
and 23-4-9. Massey further alleged that Eastern discriminated against him on
account of his handicap, constituting disability discrimination under the
WVHRA. See id. 5-11-9(1).

In response, Eastern brought suit in federal court pursuant to 301 of the Labor
Management Relations Act, 29 U.S.C. 185 (2000), and the Federal
Arbitration Act, 9 U.S.C. 2 (2000), seeking to compel Massey to arbitrate his
pending state law claims. As a member of the United Mine Workers of
America ("UMWA"), Massey's employment with Eastern was governed by the
Wage Agreement. Eastern asserted that the Wage Agreement precluded Massey
from litigating his claims in a judicial forum, and instead committed them to
arbitration.

The Wage Agreement establishes a grievance process for resolving disputes

between Eastern and the UMWA or its members. In Article XXIII(c), the Wage
Agreement provides that "disputes arising under this Agreement shall be
resolved" by following three preliminary steps involving just the employee, the
UMWA, and Eastern. Then, "in cases where the [UMWA's] district
representative and the representative of [Eastern] fail to reach agreement, the
matter shall ... be referred to the appropriate district arbitrator who shall decide
the case without delay." Furthermore, Article XXVII states in relevant part that
"all disputes and claims which are not settled by agreement shall be settled by"
the grievance process in Article XXIII, and that "the purpose of this provision
[is] to provide for the settlement of all such disputes and claims through the
machinery in this contract ... without recourse to the courts."

The Wage Agreement also includes two substantive provisions that are relevant
to the arbitrability of Massey's claims. First, Article III(l) is pertinent to
Massey's workers' compensation discrimination claims:

Each employer who is a party to this Agreement will provide the protection and
coverage of the benefits under workers' compensation and occupational disease
laws, whether compulsory or elective, existing in the states in which the
respective Employees are employed. Refusal of any Employer to carry out this
directive shall be deemed a violation of this Agreement.

Moreover, a non-discrimination provision in Article XXV is relevant for

considering the arbitrability of Massey's WVHRA claims:

Neither the Employer nor the Union shall discriminate against any Employee or
with regard to the terms or availability of classified employment on the basis of
race, creed, national origin, sex, age, political activity, whether intra-Union or
otherwise. In addition, the Employer and Union agree that they will adhere to
applicable provisions of the Vietnam Era Readjustment Assistance Act of 1974,
the Rehabilitation Act of 1973, and the Americans With Disabilities Act.

10

Asserting that these clauses waived Massey's right to litigate his state law
claims, Eastern filed a motion to compel arbitration and to enjoin Massey from
prosecuting his causes of action in state court. For his part, Massey filed a
motion to dismiss Eastern's federal lawsuit.

11

The district court was persuaded that Massey was required by the Wage
Agreement to arbitrate his claims under the West Virginia Workers'
Compensation Act. It therefore enjoined Massey from pursuing these claims
further in state court and ordered him to submit them to the Wage Agreement's
grievance process. See also Pine Ridge Coal Co. v. Loftis, 271 F.Supp.2d 905,
909 (S.D.W.Va.2003) (reaching the same conclusion when interpreting the
Wage Agreement in a lawsuit brought by another union employee under the
same West Virginia anti-discrimination provision). However, the district court
held that the Wage Agreement did not prevent Massey from bringing his
WVHRA claim in state court, and it therefore dismissed Eastern's complaint as
it related to that count. Both parties appeal the district court's judgment, and the
UMWA filed an amicus brief supporting Massey's position in the case.1

II.
12

We have consistently held that a union-negotiated CBA may waive an

employee's statutory right to litigate his employment discrimination claims in a
judicial forum. See, e.g., Safrit v. Cone Mills Corp., 248 F.3d 306, 308 (4th
Cir.2001). However, the Supreme Court made clear in Wright v. Universal
Maritime Serv. Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998),
that any such waiver must be "clear and unmistakable." While a presumption in
favor of arbitration normally governs the interpretation of arbitration clauses in
CBAs, this presumption is inapplicable in the context of statutory
discrimination claims. Id. at 77-79, 119 S.Ct. 391. Waivers of statutory claims
in CBAs are subject to a stricter standard, because the right to a judicial forum
is so important that it must "be protected against less-than-explicit union
waiver." Id. at 80, 119 S.Ct. 391. Thus, "in the collective bargaining context,
the parties `must be particularly clear' about their intent to arbitrate statutory
discrimination claims." Carson v. Giant Food, Inc., 175 F.3d 325, 331 (4th
Cir.1999) (quoting Universal Maritime, 525 U.S. at 79, 119 S.Ct. 391).

13

In Carson, we outlined two ways in which a waiver in a CBA can meet the
clear and unmistakable standard from Universal Maritime. See id. at 331-32.
First, parties can include in a CBA an "explicit arbitration clause," which is a
self-contained, "clear and unmistakable provision under which the employees
agree to submit to arbitration all [statutory discrimination claims] arising out of
their employment." Id. at 331. Second, in cases where the arbitration clause is

not as specific and instead refers broadly to "all disputes" or "all disputes under
this agreement," a CBA may meet the clear and unmistakable requirement by
explicitly incorporating the statutory anti-discrimination requirements
elsewhere in the contract. Id. at 332. Where such a separate provision "makes it
unmistakably clear that the discrimination statutes at issue are part of the
agreement," we have said that a general arbitration clause would be sufficient to
satisfy the strictures of Universal Maritime. Id.
14

While it is thus possible to meet the clear and unmistakable waiver standard of
Universal Maritime, it is not easy. In Carson, the arbitration clauses provided
generally for arbitration of any disputes regarding the meaning of the CBAs.
See 175 F.3d at 328, 332. While the various CBAs contained contractual antidiscrimination clauses, none of them specifically incorporated any antidiscrimination statutes. See id. at 327-28, 332. Likewise in Brown v. ABF
Freight Sys., Inc., 183 F.3d 319, 320 (4th Cir.1999), the arbitration clause
simply referred to "all grievances or questions of interpretation arising under
this ... Agreement." And although the CBA had a fairly elaborate contractual
anti-discrimination provision (it parroted in part the language of federal statutes,
it stated that the parties would not "engage in any other discriminatory acts
prohibited by law," and it specified that it protected employees who qualify as
disabled under the Americans with Disabilities Act), this clause also failed to
specifically incorporate any anti-discrimination statutes into the CBA. Id. at
322-23. In both cases, we held that the CBAs fell short of meeting the clear and
unmistakable standard. See Carson, 175 F.3d at 332; Brown, 183 F.3d at 323.
As we observed in Carson, "broad, general language is not sufficient to meet
the level of clarity required to effect a waiver in a CBA." 175 F.3d at 331.

15

In Safrit, we did find that a CBA met the requisite level of clarity for waiving
an employee's right to litigate her Title VII discrimination claim. See 248 F.3d
at 308. But there, the CBA contained an explicit, self-contained arbitration
clause for Title VII claims, declaring that the parties agreed to "abide by all the
requirements of Title VII" and, in the same section, that "unresolved grievances
arising under this Section are the proper subjects for arbitration." Id. Simply
put, we have required explicit, unambiguous language to satisfy the standard
laid out in Universal Maritime.

III.
16

It is within this framework that we consider whether Massey was compelled by

the Wage Agreement to arbitrate his statutory claims. Eastern makes no claim
that the Wage Agreement contains an explicit arbitration clause that would
satisfy the first approach in Carson. Article XXIII(c) simply provides that

"disputes arising under this Agreement shall," after three steps involving the
employer, the employee, and the union, be submitted to an arbitrator. And
Article XXVII only directs that "all disputes and claims which are not settled
by agreement" shall be resolved through arbitration. Thus Eastern cannot rest
on an explicit arbitration clause in seeking to satisfy the Universal Maritime
standard.
17

Nonetheless, the district court found (and Massey concedes) that Articles
XXIII(c) and XXVII are sufficient to constitute a general arbitration clause.
The court then held that Article III(l) of the Wage Agreement explicitly
incorporates the West Virginia Workers' Compensation Act, thus constituting a
clear and unmistakable waiver of Massey's workers' compensation
discrimination claims under the second approach outlined in Carson. As for
Massey's WVHRA claim, the district court ruled that there is no explicit
incorporation of the statute in Article XXV of the Wage Agreement, and
consequently that Massey could pursue his WVHRA claim in state court. We
consider each ruling in turn.

A.
18

First, Massey argues that the district court erred in ruling that his workers'
compensation discrimination claims must be arbitrated under the Wage
Agreement. As noted above, Article III(l) directs that every "employer who is a
party to this Agreement will provide the protection and coverage of the benefits
under workers' compensation ... laws, whether compulsory or elective, existing
in the states in which" covered employees are employed. And it further
declares that an employer's failure "to carry out this directive shall be deemed a
violation of this Agreement." According to the district court, this Article makes
clear that Eastern's failure to comply with state workers' compensation laws
results in a breach of the Wage Agreement. Thus, the court concluded, the
West Virginia Workers' Compensation Act is fully incorporated into the Wage
Agreement, and Eastern's alleged failure to comply with the anti-discrimination
provisions in that Act could only be resolved through the grievance process.

19

It is true that one could reasonably construe Article III(l), as the district court
did, to incorporate into the Wage Agreement the anti-discrimination provision
of the West Virginia Workers' Compensation Act. Article III(l) could be read to
mean that Eastern is required to give Massey all of the "protection[s] ... under
workers' compensation... laws" in West Virginia, which would include the Act's
"protection" against discrimination in the receipt of benefits. Under this
construction, Massey would indeed be compelled to arbitrate his claims
predicated on the Act's anti-discrimination provision.

20

Yet the UMWA advances another plausible reading of Article III(l). Article
III(l) can be interpreted to require Eastern to "provide the protection ... of the
benefits under workers' compensation ... laws" in West Virginia. Under this
construction, Article III(l) mandates simply that signatory employers, such as
Eastern, provide the proper amount of benefits to which their employees are
entitled under state workers' compensation laws. Indeed, the fact that Article
III(l) contemplates that state workers' compensation laws may be "compulsory
or elective" and then makes clear that employers bound by the Wage
Agreement must provide the relevant benefits supports this interpretation.
But this basic requirement on employers to provide benefits under state
workers' compensation laws is not the same as explicitly incorporating into the
Wage Agreement the entire West Virginia Workers' Compensation Act, along
with its legal rights and remedies for (among other things) discrimination. See
Brown, 183 F.3d at 322 (holding that for a waiver to explicitly incorporate an
anti-discrimination statute, "a simple agreement not to engage in acts violative
of that statute... will not suffice," because "the parties must make `unmistakably
clear' their intent to incorporate in their entirety the `discrimination statutes at
issue'") (citations omitted).

21

Our task here, of course, is not to decide which of these interpretations is the
correct one. The fact that there are at least two plausible and competing
interpretations of Article III(l) is enough to demonstrate that the Article fails to
provide a clear and unmistakable waiver. See Carson, 175 F.3d at 332 ("[C]lear
and unmistakable does not mean general language that under ordinary
principles of contract interpretation might very well be interpreted to require
arbitration."). At bottom, Article III(l) requires that Eastern provide its
employees with the "protection and coverage of the benefits" under state laws.
This may be interpreted to include protection against discrimination in the
receipt of benefits, but it does not do so clearly and unmistakably. See Brown,
183 F.3d at 322. It is not nearly as explicit as the CBA in Safrit, in which the
same section mandated compliance with Title VII and, further, expressly
directed that "unresolved grievances" dealing with such claims "are the proper
subjects for arbitration." 248 F.3d at 308. Accordingly, Massey was not
compelled by the Wage Agreement to arbitrate his workers' compensation
discrimination claims.2

B.
22

On its cross-appeal, Eastern argues that the district court erred in finding that
Massey's WVHRA claim is not committed to arbitration under Article XXV of
the Wage Agreement. Yet if the Wage Agreement does not clearly and
unmistakably waive Massey's workers' compensation discrimination claims, it

certainly does not do so for his WVHRA claim. The first sentence in Article
XXV merely provides that "neither the Employer nor the Union shall
discriminate against any Employee ... on the basis of race, creed, national
origin, sex, age, [or] political activity." As we have held, it is not enough for a
contractual anti-discrimination clause to loosely approximate the language of
anti-discrimination statutes. See Brown, 183 F.3d at 322. Such statutory
provisions must be explicitly incorporated into the CBA in order to constitute a
valid waiver under Universal Maritime. Id.
23

But Eastern places heavy reliance on the second sentence in Article XXV,
which states that "the Employer and Union agree that they will adhere to
applicable provisions of," among other statutes, the Americans with Disabilities
Act ("ADA"). Eastern assumes that this clause is sufficiently clear and
unmistakable to compel arbitration of all ADA claims. It then argues that,
because the WVHRA is the state counterpart to the ADA and is interpreted in
the same manner by West Virginia courts and administrative agencies, Article
XXV's incorporation of the ADA also constitutes a specific incorporation of the
WVHRA.

24

As an initial matter, it is not clear that West Virginia courts have interpreted the
WVHRA as federal courts have construed the ADA. See Stone v. St. Joseph's
Hosp., 208 W.Va. 91, 538 S.E.2d 389, 404 (2000) ("[W]e recognize that the
[WVHRA], as created by our Legislature and as applied by our courts and
administrative agencies, represents an independent approach to the law of
disability discrimination that is not mechanically tied to federal disability
discrimination jurisprudence."); but see id. at 408-10 (Scott, J., concurring)
(disputing the majority's characterization of the relationship between the
WVHRA and the ADA, asserting that "the pattern and practice of this Court
have been to follow the federal courts' interpretation of various statutory
provisions" in discrimination cases).

25

Regardless, if we entertain Eastern's assumptions that the ADA is explicitly

incorporated into the Wage Agreement in Article XXV, and further that the
WVHRA is treated similarly to the ADA, this does not mean that there is a
clear and unmistakable waiver of WVHRA claims. The standard enunciated in
Universal Maritime makes clear that a valid waiver must explicitly incorporate
the anti-discrimination statute at issue. See Universal Maritime, 525 U.S. at 7981, 119 S.Ct. 391; Carson, 175 F.3d at 332. It is insufficient, then, for a waiver
provision to incorporate one statute into a CBA by referring to another,
independently created (though analogous) statute.

26

Sensing the lack of textual support for its position, Eastern protests that we

26

must not ignore the intent of the parties in Article XXV. It would make no
sense, Eastern contends, to construe the parties as having decided to handle all
ADA claims through the grievance process but to leave the state courts open to
hear ADA-like claims under the WVHRA. This contention misses the point.
Even if Eastern could offer more than speculation as to what the parties
intended when agreeing to Article XXV, it is "the parties' expressed intentions"
that control our inquiry into whether there was a clear and unmistakable waiver.
Carson, 175 F.3d at 331 (emphasis added). Here, the language unquestionably
fails to provide such a clear and unmistakable waiver of Massey's WVHRA
claim. Massey was therefore entitled to pursue his disability discrimination
claim in state court.

IV.
27

For the foregoing reasons, the judgment of the district court is affirmed in part
and reversed in part. We remand with directions that Eastern's suit be
dismissed.

28

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Notes:
1

The district court also rejected Massey's contention that it should abstain from
considering Eastern's federal lawsuit in light of Massey's ongoing state
proceedings and the ongoing state litigation of another former employee against
Eastern. We find no error on this point

Massey advances a number of alternative arguments relating to the district

court's ruling that his worker's compensation discrimination claims must be
arbitrated. For instance, Massey asserts that he would be unable to vindicate all
his statutory remedies in arbitration, and that the district court erred in rejecting
Massey's motion for reconsideration based on an affidavit submitted after the
close of evidence. Because we find that Massey may pursue his workers'
compensation discrimination claim in a judicial forum, we need not address
these contentions